COVID-19 Victims Have A Right To Decent Burial As Per Religion Under Articles 21 And 25: Calcutta HC issues Guidelines [Read Judgment]

Asserting that the Right to a decent funeral can also be traced in Article 25 of the Constitution of India, the Calcutta High Court on Wednesday ruled that the immediate family members of Covid-19 victims be permitted to perform the funeral rites of the deceased subject to them following certain precautionary guidelines to eliminate/minimize the risk of them becoming infected by the deadly virus which has caused devastation in the form of loss of countless lives across the world.The Court was also of the firm view that the right of the family of a Covid- 19 victim to perform the last rites before the cremation/burial of the deceased person is a right akin to Fundamental Right within the meaning of Article 21 of the Constitution of India.Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee were pronouncing the judgment on a PIL raising the following two issues, inter alia: The four issues are as follows:i) The human remains/dead bodies of persons inflicted with Covid-19 are being disposed of by the administration unceremoniously and in an undignified manner without showing even a semblance of respect to the mortal remains.ii) Relatives and friends of persons admitted to hospitals with Covid-19 or persons who have contracted the disease whilst in hospitals having been admitted for some other malady, and who subsequently passed away, are not being permitted to have a last look at or to pay last respect to the mortal remains of the dead person and to perform the last rites.The division bench opined that there is no scope for doubt any more that the right to life enshrined in Article 21 includes the right to life with dignity, agreeing with the submission of the petitioner that living with dignity includes not only the dignity of a person when he is alive but also the dignity following his death. "The right to dignity and fair treatment under Article 21 is not only available to a living person but also to his mortal remains after his demise. Disposal of a human body, whether or not the person dies of Covid-19, whether by cremation or burial, should be done with due respect and solemnness", said the bench, also agreeing that the near and dear ones of a deceased person who had contracted Covid-19 should have an opportunity to have a final look at the human remains of the person and to pay their last respect and homage to the departed soul. The bench said that traditions and cultural aspects are inherent to the last rites of a person's dead body, and that the right to a decent funeral can also be traced in Article 25 of the Constitution of India which provides for freedom of conscience and free profession, practice and propagation of religion subject to public order, morality and health and to the other fundamental rights under Part III of the Constitution.The bench was of the view that the right to live a dignified life extends up to the point of death including the dignified procedure of death. "We are inclined to interpret the phrase 'dignified procedure of death' in an expansive manner so as to include dignified disposal of the human remains of a deceased. We unhesitatingly hold that the mortal remains of a deceased person must be treated with care, respect and dignity and have to be disposed of by burial or burning, according to the religion, in so far as the same is ascertainable, that the deceased person practised. It makes no difference if the deceased person was infected with Covid-19", held the bench, adding that of course, all requisite safety and precautionary measures must be taken by the persons who carry out the funeral.As regards the second issue, i.e., the relatives and friends of Covid-19 victims are not being permitted to have a last look at or to carry out the last rites of the deceased; and that, the same should be permitted, the bench noted that the Government Notification dated 6 June, 2020 already provides opportunity for the family members of the deceased to see the mortal remains and pay their last respect. "In our considered view, the family members should be permitted to perform the last rites of a deceased notwithstanding that the deceased was infected with Covid-19", said the bench.The bench reflected that by and large, whether it is for a theist or atheist, freedom of conscience and free profession and practice of religion is protected under Clause (1) of Article 25 of the Constitution. The term "religion" in that Clause need not necessarily be linked to any particular religion as is understood as a religious denomination. It is a matter of faith and of one's own conscience which could trigger the profession and practice of what may be religion in the larger sense to a particular individual. With this concept in mind, the bench said that it needs to be delineated that it is not the religious practices of the different religious denominations which matter in such instances. It is a matter of connectivity with the person who has died and the near relatives may be in...

COVID-19 Victims Have A Right To Decent Burial As Per Religion Under Articles 21 And 25: Calcutta HC issues Guidelines [Read Judgment]

Mehal Jain

"The traditional belief in our country is that unless the last rites are performed before the burial/cremation, the soul of the deceased shall not rest in peace. This belief is deep rooted in our country. It also has an emotional and sentimental aspect"

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